On April 11, the West
Virginia legislature passed HB 2981, which makes two improvements in the ballot
access laws for minor party and independent candidates. The bill lowers the
number of signatures from 2% of the last vote cast for that office, to 1%.
Also it moves the non-presidential petition deadlines from mid-May to August
1. Governor Joe Manchinís office has indicated informally that the Governor
expects to sign the bill when it reaches him.

There are no statewide
offices on the West Virginia ballot in 2010; the most important office up
is U.S. House. But for 2012, the number of signatures for president will now
be 7,134 signatures, instead of 14,268.

Importance
of the Deadline Change

West Virginia was the
first state in the nation to impose an independent candidate petition deadline
as early as the spring of an election year. That action was taken in 1919,
and it has plagued minor party and independent candidates for 90 years. The
1919 legislature moved the deadline, in presidential election years, from
October to May.

On July 4, 1924, U.S.
Senator Robert La Follette announced that he would run for president as an
independent, with the label "Progressive." West Virginia was the
only state in which his ballot position was threatened because he had missed
a deadline. The Secretary of State at the time, Houston G. Young, simply said
the law wasnít clear and accepted the La Follette petitions anyway. See the
New York Times, July 19, 1924, page 2. Young said, "It will be
up to someone else to get their names off." The Attorney General, E.
T. England, said, "No decision had been asked for and until one is requested,
none would be given." So, La Follette appeared on the ballot despite
having missed the deadline.

Nevertheless, the early
deadline remained on the statute books. In 1937 the deadline problem was made
even worse by a new law that said a declaration of candidacy must be filed
30 days before the petition deadline. Between 1937 and 1979, no minor party
or independent candidates for any statewide office were able to qualify in
West Virginia, except for two presidential candidates, Henry Wallace in 1948,
and George Wallace in 1968. Both men had started their campaigns in the odd
year before the election year, so they were prepared for West Virginiaís early
deadline.

In 1983, the U.S. Supreme
Court ruled that early deadlines for independent presidential petitions are
unconstitutional, so in 1984 the Secretary of State accepted petitions until
September 1, ignoring the statutory deadline. In 1986 the legislature moved
the presidential petition deadline to August 1, but did not relax the deadline
for candidates for other office. Lawsuits to overturn the May petition deadline
were filed by the Socialist Workers Party in 1988, and also by the Libertarian
Party in federal court in 1992, and by the Libertarians in state court in
2004, but all three lawsuits lost.

The May petition deadline
for office other than president has had a devastating effect on the ability
of minor parties to get gubernatorial candidates on the ballot. In 1992, the
Libertarian Party qualified for president, but not for its gubernatorial candidate,
Karl Hess. In 1996, the Reform Party got its presidential candidate on the
ballot, but not its gubernatorial candidate, Floyd Fullen. In 2004, the Libertarian
Party got its presidential candidate on, but not its gubernatorial candidate,
Simon McClure. And in 2008, the Constitution Partyís presidential candidate
qualified, but its gubernatorial candidate, Butch Paugh, did not.

Reduction
in Signatures

The decrease in the number
of signatures from 2% of the last vote to 1% is also very helpful. West Virginia
required 1% petitions between 1932 and 1999, but doubled that to 2% in 1999.
The reason the legislature doubled the petition requirement in 1999 was that
it was simultaneously making it legal for primary voters to sign an independent
or minor party petition. The ban on both voting in the primary and signing
a petition had existed since 1915.

The only 2% presidential
petitions that ever succeeded in West Virginia were the 2004 Nader and Libertarian
presidential petitions, and the 2008 Nader and Constitution Party presidential
petitions. In 2000 the 2% requirement was enjoined (for 2000 only) by a court
on the grounds that the 1999 change from 1% to 2% violated due process, because
the increase went into effect in the middle of the 2000 petitioning period.

West Virginia ballot
access laws are still far from ideal. West Virginia is one of eleven states
in which it is impossible for a group to become a qualified party in advance
of any particular election. Most states have a procedure (usually a petition,
or a registration drive) that makes it possible for a group to turn itself
into a qualified party, any time it wishes. But in West Virginia and ten other
states, there is no such procedure. Instead, a group must get its nominee
on the ballot for some particular office, and then hope that nominee polls
enough votes to satisfy the vote test. Only then does it become a qualified
party. The West Virginia vote test is 1% for Governor.

The only parties besides
the two major parties that have been qualified parties in the last 70 years
have been the Mountain Party, continuously since 2000, and the Libertarian
Party between 1996 and 2000.

GAINS
FOR OKLAHOMA BALLOT ACCESS BILL

On April 20, the Oklahoma
Senate unanimously passed HB 1072, which lowers the petition for a previously
unqualified party from 5% of the last vote cast, to 3% of the last gubernatorial
vote.

The bill had previously
passed the House, but the House version was 5% of the last gubernatorial vote.
Therefore, the bill must go to a conference committee in early May.

The existing Oklahoma
law requires 73,134 signatures for a party in 2010, a higher number of signatures
than that of any state except for California (88,991 registrations) and North
Carolina (85,379 signatures).

If the Oklahoma bill
becomes law at 3% of the last gubernatorial vote, the 2010 and 2012 requirement
will be 27,794 signatures. Oklahoma would still have the highest percentage
of any state for a mandatory petition to recognize a party (except that Oklahoma
would be tied with Alabama, which also requires 3% of the last gubernatorial
vote).

If the Oklahoma bill
becomes law at 3%, no state will have a mandatory statewide ballot access
petition for either minor parties or independents greater than 3% of the last
gubernatorial vote. That would be the firsttime since 1921 that
no state had a statewide mandatory petition in excess of 3% of the mid-term
vote. Nevada had a 10% petition between 1921 and 1925, and a 5% petition
between 1925 and 1987.

PENNSYLVANIA
SUPREME COURT WILL HEAR NADER CASE

The April 1 B.A.N.
had reported that the Pennsylvania Supreme Court had agreed to re-hear
the Green Party 2006 case on whether the partyís candidate for U.S. Senate
must pay the costs of removing him from the ballot. On April 16, the Pennsylvania
Supreme Court said it would also re-hear the similar case for Ralph Nader
that originated in 2004.

OHIO
SECRETARY OF STATE RECOMMENDS 10,000 SIGNATURES

On April 22, Ohio Secretary
of State Jennifer Brunner released her ideas for election law changes. For
the petition to qualify a party, she recommends a requirement of one-fourth
of 1% of the last gubernatorial vote. For 2010, that would be 10,057 signatures.
She also recommends a new vote test, that a party remain on the ballot if
it had received at least 1% for any statewide race at either of the last two
elections.

However, she recommends
keeping a very early petition deadline for new parties, of 90 days before
the primary. This is because the Ohio Constitution says that all qualified
parties must nominate by primary. The Ohio primary in presidential election
years is in March, so the deadline in presidential years would be in December
of the year before the election. In midterm years the primary is in May, so
the deadline would be in February.

Her report has a footnote,
"There has been some discussion of modifying the Ohio Constitution to
allow nomination via convention for minor and intermediate parties. This very
significant change in elections procedure requires greater study before the
Secretary of State can make a final recommendation for or against altering
the Ohio Constitution."

No legislator has yet
introduced a bill on this subject.

PENNSYLVANIA
FEDERAL LAWSUIT

On April 21, the Constitution,
Green and Libertarian Parties finally filed the federal lawsuit against Pennsylvania
that has been planned for two years. Constitution Party of Pennsylvania
v Cortes, 09-1691, eastern district. The case was assigned to Judge Thomas
Golden, a Bush Jr. appointee. The case attacks the unique Pennsylvania practice
of charging candidates for the costs of removing them from the ballot, if
their petitions are shown not to have enough valid signatures.

Ever since the U.S. Supreme
Court invalidated poll taxes in 1966, there has been a presumption that states
cannot require voters to pay money in order to engage in electoral activity.
This principle is based on the Equal Protection Clause.

In 1972 the U.S. Supreme
Court invalidated Texas mandatory filing fees for candidates (amounting to
as much as $8,000), even though the plaintiff-candidates were not indigent.
In 1974 the Court invalidated mandatory California fees (of as much as $700)
for candidates, at least for candidates who couldnít afford them. In 1994,
a U.S. District Court invalidated North Carolinaís 5 cents per signature fee
for checking ballot access signatures for new parties, and in 1992 the 11th
circuit invalidated Floridaís 10 cents per signature fee for checking signatures.
In 1995, the 8th circuit ruled that states canít force parties
to pay for the costs of their primaries, if the state mandates that parties
nominate by primary.

Logically, therefore,
one can argue that Pennsylvania canít charge candidates for the costs of checking
their signatures. Pennsylvania began this practice in 2004, when it said Ralph
Nader had to pay court costs of over $80,000, since the outcome was that he
didnít have enough valid signatures. Pennsylvania did this again in 2006,
concering the the Green Partyís statewide petition, and again the costs were
over $80,000.

Nader and the Greens
have tried to persuade state courts that the U.S. Constitution forbids imposition
of these costs, but the state courts ignore the argument and do not even discuss
it in their opinions. The recent willingness of the Pennsylvania Supreme Court
to reconsider these fees is based on recent evidence of law-breaking by the
people who challenged the Nader and Green petitions. There is no sign that
the Pennsylvania Supreme Court is any more interested in the constitutional
argument than it had been in the past.

The lawsuit also challenges
the failure to tally write-in votes, and the 15% registration test for a party
to be on the ballot automatically.

NATIONAL
POPULAR VOTE PLAN BILLS

Since the April 1 B.A.N.,
bills to establish the National Popular Vote Plan for presidential elections
have passed the Washington legislature, the Nevada Assembly, and the Rhode
Island Senate Judiciary Committee. However, the Arkansas bill that had passed
one house failed to pass in the other house before the legislature adjourned.

WRITE-IN
BILLS

Delaware: B.A.N.
recently learned that in 2008, a law was passed that creates a write-in
declaration of candidacy procedure. These laws say that write-ins are only
tallied for candidates who file a declaration of write-in procedure, in advance
of the election. Delaware is the 36th state to have such a law.
The new law is found in section 3401 of the election code. The deadline for
the declaration is September 30.

Maine: most of
the contents of LD 547 (the bill to improve conditions for write-in candidates)
have been amended into LD 1169, the Secretary of Stateís election law bill.
LD 1169 is still in committee because other election law amendments are still
being added to that bill.

OTHER
BILLS

Alabama: HB 711
has passed the House and the Senate policy committee. It would let overseas
absentee voters use the internet to vote. Terminals would be set up in places
like large U.S. military bases in Germany and Okinawa.

California: AB
1121 would let ten general law cities or counties use Instant Runoff Voting
for their own elections. The bill does not specify which ten jurisdictions;
it would be up to various counties or cities to volunteer. It passed the Assembly
Elections Committee on April 21.

AB 1396 would repeal
the election laws that tell the Democratic Party how to organize itself. It
has its first hearing on May 5 in the Assembly Elections Committee.

Illinois: HB 723
passed the House on April 2. It virtually ends the ability of qualified parties
to nominate by committee, after the primary, in cases in which no one had
run in that partyís primary. The bill would still allow the practice, but
would require candidates nominated by committee after the primary to submit
a petition of 5% of the last vote cast (or 25,000 signatures, whichever was
less). Already Illinois legislative races have only one person on the general
election ballot in about half the races, and this bill, if enacted, will shrink
the number of candidates even further.

Even the Democratic and
Republican Parties nominate many candidates by committee after the primary.
The bill also hurts the Green Party, the only other ballot-qualified party.

Minnesota: SF
1820 and HF 2052 would set guidelines for cities and counties that wish to
use Instant Runoff Voting for their own elections.

New Hampshire:
on April 22, the legislature passed HB 35, to eliminate the vice-presidential
primary. No other state has a vice-presidential primary. Generally, no one
who really has a chance to be chosen by a major party for vice-president ever
files in this primary.

New Mexico: on
April 7, Governor Bill Richardson signed SB 3, which repeals the requirement
that candidates for partisan county office, or for state executive positions
that are elected in districts, need any signatures to get on the primary ballot.

North Carolina:
on March 19, Senator Jim Jacumin (R-Connelly Springs) introduced SB 731. It
reduces the number of signatures for a new party, and a statewide independent,
from 2% of the last gubernatorial vote, to 10,000 signatures.

Oklahoma: both
houses of the legislature have passed bills making it easier for initiatives
to get on the ballot. However, both need to go to conference committees. SJR
13 lowers the number of signatures for initiatives in midterm years. SB 852
expands the petitioning period from 3 months to one year.

Oregon: on March
31, the House passed HB 2414 by a margin of 52-8. It legalizes fusion. A candidate
nominated by two parties would have both party names, separated by a comma,
after his or her name on the ballot. However, there would be only one checkbox,
so the voter could not choose which of the two parties to support.

Pennsylvania:
the ballot access improvement bill in the Senate, SB 252, has not made any
headway because Senator Charles McIlhenny (R-Doylestown), chair of the State
Government Committee, has not scheduled a hearing for the bill. Activists
are working hard to persuade him to hold such a hearing.

South Carolina:
bills to make ballot access much more difficult for independent candidates
are pending in each house. They are HB 3746, which passed the House Judiciary
Committee on April 22, and SB 590. They would make it illegal for primary
voters to sign for an independent candidate; they would make it illegal for
newly-registered voters to sign for an independent candidate; and they would
require independent candidates to file a declaration of candidacy in February.

Texas: the ballot
access bill, HB 820, has a hearing on April 27. The bill reduces the number
of signatures for minor parties and independent candidates.

Utah: on March
24, Governor Jon Huntsman signed SB 27 into law. Among other things, it ends
the law that requires independent presidential candidates to submit their
signatures in person. Also it establishes an August 15 deadline for independent
presidential petitions. The old deadline had accidentally been repealed in
1994, but the Elections Office had been accepting such petitions up until
September 1, in the absence of a valid law.

Washington: on
April 22, the legislature passed HB 1517. It lets ex-felons who still havenít
finished paying off any fines or restitution payments register to vote.

THOUGHTFUL
LAW REVIEW ARTICLE

Gur Bligh has published
"Extremism in the Electoral Arena: Challenging the Myth of American Exceptionalism"
in the Brigham Young University Law Review, no. 5, 2008. The 74-page article
has some original and important ideas about U.S. election law.

The United States prides
itself on its legal protection for the expression of all ideas, even unpopular
ideas. However, Bligh points out that the U.S. is actually less permissive
than the ordinary democratic nation, when it comes to letting unpopular ideas
circulate in election campaigns. The U.S. restricts unpopular ideas in election
campaigns by (1) making ballot access and debate access difficult for minor
parties and independent candidates; and (2) by permitting the two major parties
to exclude such candidates from major party primaries, based on their ideas.

The article quotes Erwin
Chermerinsky on viewpoint neutrality: "The Courtís conclusion that the
governmentís decision (upholding exclusion of an independent candidate from
a debate sponsored by public TV) was viewpoint neutral was essential to the
result. But what causes a candidate to be from a minor, rather than a major,
party? The answer, of course, is that a minor party candidateís views are
favored by a much smaller percentage of the population than those of a major
party candidate. From this perspective, choosing whom to include in a debate
based on whether they are from a minor or a major party is all about viewpoint."

Many observers of politics
believe that anyone can run in a major party primary. This is not true, as
Bligh shows. The article deserves to be widely read.

PUBLIC
FUNDING FOR CONGRESS CANDIDATES

Bills in Congress for
public funding of congressional candidates are S752 and HR1826. They treat
all candidates equally, regardless of party.

McCAIN
CAMPAIGN SAYS BALLOT ACCESS LAW BLOCKED LIEBERMAN

During the summer of
2008, Senator John McCain seriously considered asking Senator Joe Lieberman
to be his running mate, although ultimately Governor Sarah Palin was chosen.
During April 2009, the head of John McCainís search committee for vice-president
said that a major reason Lieberman wasnít chosen was that West Virginia would
not have permitted Liebermanís name to appear on the ballot, since Lieberman
was a registered Democrat.

The head of John McCainís
search team, A. B. Culvahouse, is a prominent attorney in Washington, D.C.
He was President Reaganís attorney while Reagan was president. Culvahouse
made statements both in an e-mail interview of April 14 with a student, Cadet
Robert G. Hall of West Point, and in a talk to a group of Republican Party
attorneys that was broadcast on C-SPAN on April 17. In the Hall interview,
the question put to Culvahouse was, "What played the largest role in
Senator McCainís preference of someone else as his vice presidential nominee
over Senator Lieberman: a desire to reunite the Republican Party, ballot balancing,
concerns of a presidential succession, or something else?" Culvanhouseís
answer was, "The ballot access issue was very problematic."

West Virginia law, sec.
3-5-7(6), says that someone running in a primary election, or petitioning
for the general election, must sign a form that says the candidate "is
a member of the party and affiliated with that political party, as evidenced
by the candidateís current registration as a voter affiliated with that party,
and that the candidate has not been registered as a voter affiliated with
any other party for a period of 60 days."

However, West Virginia
has never applied this law to presidential or vice-presidential candidates
in November. Such candidates donít even fill out a declaration of candidacy
form.

Many presidential and
vice-presidential candidates have appeared on the West Virginia November ballot
since this law was enacted in 1991, who could not have complied with the law
if it did pertain to them. Candidates such as Al Gore, George H. W. Bush,
George W. Bush, Ross Perot, Harry Browne, and Bill Clinton lived in states
in which the registration form doesnít ask about party membership (Arkansas
forms do ask, but they didnít ask in the 1990ís).

Also, candidates that
do live in states with voter registration have appeared on the West Virginia
ballot even though their registration didnít match their party label. John
Hagelin was a registered independent but he appeared on the West Virginia
ballot as the Natural Law Party nominee in 2000. Ralph Nader was a registered
independent but he appeared on the West Virginia ballot in 2000 as the Green
Party nominee. Cynthia McKinney and Rosa Clemente were registered Greens but
they appeared on the West Virginia ballot as Mountain Party nominees.

WHEN
IS THE LAST TIME EACH STATEíS LEGISLATURE VOLUNTARILY IMPROVED BALLOT ACCESS
FOR MINOR PARTIES OR INDEPENDENT CANDIDATES?

The chart below lists
each state, and tells the most recent year when that stateís legislature voluntarily
made a significant improvement in the ballot access laws for minor parties
or independent candidates. "Voluntarily" means the legislature passed
a bill, even though no court had struck down a previous law.

The vast majority of
states have voluntarily improved some aspect of the ballot access laws during
the last 25 years, which should give hope to activists working for better
laws.

Not all of the improvements
listed in this chart are necessarily still in effect. Some of them were repealed.
For instance, the Illinois 1927 improvement was repealed in 1931. Also at
least one of the improvements (the Alabama example in 1977) was an accident,
caused by an error in drafting a bill. However, Alabama didnít change it for
five years.

STATE

YEAR

WHAT
WAS THE IMPROVEMENT?

Alabama

1977

Eliminated the petition
requirement for new parties to get on the ballot

Eased the vote test
for a party, from 3% of the top vote-getterís total, to 2%

Rhode Is.

1994

Created a 5% petition
procedure for a group to become a qualified party

So. Car.

- - -

never

So. Dak.

1993

Eased the vote test
for a party from 10% for Governor, to 2.5%

Tennessee

2000

Let candidates who
used the independent procedure have a party label, for the 2000 election
only

Texas

1987

Expanded the vote
test from 2% for Governor, to also 5% for any other statewide race

Utah

1983

Deleted the county
distribution requirement for party petitions

Vermont

1977

Eliminated the mandatory
petition for minor party nominees, if that party had 10 town committees

Virginia

1998

Lowered statewide
minor party or indp. petition from one-half of 1% of registration.,
to 10,000

Wash.

2001

Eased the minor
party or indp. presidential petition deadline from July to August

W. Va.

2009

Eased the minor
party or indp. petition from 2% of the last vote, to 1%

Wisconsin

1983

Eased the party
petition from one-sixth of voters in any 10 counties, to 10,000 signatures

Wyoming

1998

Eased the party
petition from 8,000 signatures to 2% of the last U.S. House vote (about
4,000 sigs.)

SPECIAL
ILLINOIS U.S. HOUSE ELECTION

On April 7, Illinois
held an election for the U.S. House seat, 5th district. The results:
Mike Quigley, Democrat, 69.24%; Roseanne Pulido, Republican, 24.17%; Matt
Reichel, Green, 6.60%. In November 2008, the vote had been: Dem. 73.94%, Rep.
22.04%, Green 4.02%.

MINOR
PARTY ELECTION WINS

Some minor party members
were elected to non-partisan office on April 7:

Green winners in Wisconsin:
Tony Palmeri and Bob Poeschel to the Oshkosh Common Council, Satya Rhodes-Conway
to the Madison Board of Alderpersons, Marsha Rummel to the Dane County Council,
and Jo Ellen Gramling was elected Town Clerk of Schleswig.

Libertarian winners
in Missouri: Mike Ferguson to the Grandview city council, and Robert Stephens
to the Springfield city council.

2009
GUBERNATORIAL ELECTIONS

New Jersey and Virginia
elect their governors this year. In Virginia, the only minor party or independent
candidate for Governor is Gail Parker of the Independent Green Party.

In New Jersey, the Libertarian,
Socialist, and Socialist Workers Parties have nominees. Also one prominent
independent candidate has announced: Christopher Daggett, a former regional
director of the U.S. Environmental Agency under President Reagan.

2010
GUBERNATORIAL ELECTIONS

On March 27, the Rhode
Island media said that former U.S. Senator Lincoln Chafee will be an independent
candidate for Governor in 2010. On April 10, California media reported that
Guess Jeans founder Georges Marciano will run as an independent for California
governor.

2010
PETITIONING

The Arizona Libertarian
Party is mostly finished with a registration drive, so as to retain its spot
on the ballot. Since it didnít poll 5% for president in 2008, it must have
registration of at least two-thirds of 1% by November 1, 2009. The partyís
registration is now up to .65%, so it is almost finished. The Alaska Libertarian
Party is also working to increase its registration for the same purpose. It
has about 6,500 registrants, but needs 9,786 in order to remain on the ballot.

The Constitution Party
is petitioning for party status in Wyoming. It has 300 signatures and needs
4,981 by June 1, 2010. The party has never been on the Wyoming ballot as a
party before. The Constitution Party is also just launching its Arizona petition
drive. It needs 20,449 signatures by March 2010. The Constitution Party is
also about to start in Hawaii; it needs 692 signatures by March 2010.

SOCIALIST
WORKERS PARTY GETS EXEMPTION FROM CAMPAIGN REPORTING

On March 19, the Federal
Election Commission ruled 5-1 that the Socialist Workers Party need not report
its campaign contributors, or its expenditures. This new exemption from campaign
reporting extends through the 2012 election. The SWP has enjoyed such an exemption
continuously since the early 1980ís, on the grounds that the record shows
that people identified as SWP supporters have been subject to severe harassment,
both from government agencies and from members of the public.

FORMER
CONGRESSMAN TO ADDRESS CONSTITUTION PARTY MEETING

Former U.S. House member
Virgil Goode will be one of the speakers at the Constitution Partyís national
committee meeting on June 11-13 in Newark, New Jersey. Goode represented Charlottesville,
Virginia, first as a Democrat, later as an independent, and later still as
a Republican. He was narrowly defeated for re-election in 2008.

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